TMI Blog1962 (11) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Justice by orders dated the 22nd of April 1961 mentioned in Documents Nos. II and III. In the opening part of their respective Writ petitions the petitioners have mentioned their educational qualifications and record of services in the High Court. Then they have alleged that both Respondents Nos. 4 and 5 were much junior to them. They have also pointed out that there were other persons who were senior to these Respondents but their claims were also ignored. The contentions of the petitioners are that in the matters of promotion and selection, the selective test must be based on some reasonable principle and should not be arbitrary and that the appointment of the Respondents to the respective posts referred to above was made only to give them undue preference. As a matter of fact no selection was ever made before these appointments and the cases of seventy employees including the petitioners who were senior to Respondent No. 5, and eight employees who were senior to Respondent No. 4 were not at all considered, it is also alleged that no procedure of any nature was followed in making these appointments. It is further alleged that the appointments were not in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing under the powers of Article 229(1) of the Constitution of India, It is further submitted that the rules specifically provide that selection for promotion to these posts shall be made irrespective of seniority and selection is further subject to the satisfaction of the Hon'ble the Chief Justice with regard to the integrity and impartiality of the person sought to be promoted. It is denied that no procedure in making the promotions was adopted. It is stated that the procedure followed in promoting Respondents Nos. 4 and 5 was commensurate with the requirements of the posts. It is also stated that it is not correct to say that no opportunity had been given to the petitioners or other persons to show their suitability. In fact such an opportunity existed from the very date of their entry in the service. 4. These Writ applications were admitted by this Court on the 14th of September 1962 and on that date an order was passed on the application by the petitioner that the office notes, if any, on which the impugned orders were passed may be made available to the Bench hearing the Writ petitions. Objection is taken in the reply to the production of the office notes on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealt with first and then we will make our observations regarding the preliminary objections raised on behalf of Respondent No. 5. 6. The copies of the orders filed by the petitioners of appointments of Respondents Nos. 4 and 5 show that these appointments were made by the then Chief Justice. Far the post of the Assistant Registrar, the Registrar made his recommendation for the appointment of Shri Nathu Lal on the 20th of April 1961 after considering the cases of several persons who happened to be senior to Shri Nathu Lal. In the Note the Registrar has made his remarks as to why he did not consider others fit for the post. The then Chief Justice thereafter made his own remarks about the fitness of Mr. Nathu Lal and appointed him as Assistant Registrar. The Registrar also made his recommendation on the 20th of April 19S1 with regard to the post of the Secretary to the Hon'ble the Chief Justice giving his reasons why he considered Shri Jai Dayal to be fit for promotion to that post. Thereupon the then Chief Justice made his own remarks and appointed Shri Jai Dayal on that post on the 21st of April 1961. 7. These proceedings show that the appointment to the post of the Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity that the citizens should be afforded particular facilities. When there is a question of affording an opportunity, the Constitution makers have clearly used such expression as in Article 22(5) where it has been laid down that the authority making the order of detention shall afford the earliest opportunity to such person of making a representation against the order. Article 15(2) which is an amplification of Article 16(1) clearly lays down the grounds on which it may be said that a citizen has been denied the equality of opportunity. It says that : No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Sub-articles 3, 4 and 5 of Article 16 also refer to the making of law which may be held valid in spite of Article 16(1) and (2). The conception is that the State, as defined in Article 12, which in our opinion includes the Chief Justice of a High Court, should, not make any rule which may affect the equality of opportunity. But this does not mean that in every case of appointment or recruitment to services o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this power has been abused. Practically all the grounds casting reflection on the then Chief Justice having been withdrawn, and the only matter on which this argument has been urged is that much junior persons to the petitioners have been appointed to the post of trust and responsibility ignoring the claims of the petitioners. Now what has happened in these cases may at this stage be considered. For the appointment of the Assistant Registrar, the Registrar prepared a note considering practically all the persons who were senior to Shri Nathu Lal and made a recommendation that in his opinion Shri Nathu Lal deserved to be appointed as Assistant Registrar. The then Chief Justice considered this matter and accepted this recommendation for reasons which are given in his order of appointment. It cannot be said that there was any arbitrariness in this matter. Even under the rules the post of the Assistant Registrar was a selection post and the then Chief Justice was entitled to pick and choose the best man whom he thought fit to appoint on that post Moreover, we cannot substitute our own judgment for the judgment of the then Chief Justice. The Constitution has entrusted that duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose. This is subject to a proviso which it is not necessary for us to mention. The rules were framed which are called the Rajasthan High Court (Conditions of Service of Staff) Rules, 1953 , by the then Chief Justice in exercise of the powers conferred by Article 229(2). The rules which are material for the purpose of these Writ petitions are Rules 7, 8, 9, 10 and 11, which run, as follows : 7. Other conditions of service: (1) Subject to these rules, the rules and orders for the time being in force and applicable to the servants of corresponding classes in the service of the Government of Rajasthan shall regulate the conditions of service of persons serving on the staff of the High Court; Provided that the powers exercisable under the said Rules and Orders by the Rajpramukh or the Government shall be exercisable by the Chief Justice, or by such person as he may, by general or special order, direct. (2) If any question arises as to which rules and orders are applicable to the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef Justice to the Registrar was improper. The Constitution under Article 229(1) has itself laid down that the then Chief Justice may delegate this power either to another Judge of the High Court or to any other officer. When such a delegation is permissible under Article 229(1) of the Constitution, we do not think that it was necessary that there should have been some criteria laid down in the rules for making promotions far the post of the Assistant Registrar or Secretary. However, this matter has no importance as in this case the Registrar has not made the appointments. 13. It was further urged that appointment could have been made only from amongst the persons occupying the posts mentioned in Rule 9 and as Shri Jai Dayal was only an officiating Translator and not a Translator, he could not have been appointed as the Secretary. The contention is that under Rule 11, no person on the staff attached to the High Court shall be allowed promotion to any post of special trust or responsibility or to any of the special posts mentioned in Rule 9 unless the appointing authority is satisfied that he is a person of integrity and impartiality and as the posts of the Assistant Registrar and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as administrative was not maintainable as it would amount to issuing a direction to himself. This point was left undecided by their Lordships of the Supreme Court in Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta High Court. It is not necessary for us to decide this point either though we are inclined to take a view that if there is a breach of a fundamental right, a writ may be issued even for quashing an order passed under Article 229 of the Constitution. The second objection is that of delay. There is much substance in this contention of Respondent No. 5. The orders of appointment were made on the 22nd of April 1961 and the petitioners have presented their petitions as late as the 7th of July 1962. Thus, there is a delay of more than 1 year-2 months. The only reason for the delay that has been given is that the petitioners were making certain representations. But this is no reason for them not to have come to this Court at a much earlier stage. We are of the opinion that the Writ petitions deserve to be dismissed on this ground as well. The third objection is that the petitioners had made certain scandalous reflections in their Writ petitions against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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